Breaking and Entering Lawyers In Calgary

Breaking and entering, commonly referred to as a “B&E” offence, is criminalized under sections 348(1)-(3) of the Criminal Code.

Breaking and entering is not to be confused with other offences such as trespassing at night. The key element in determining whether someone committed a breaking and entering offence is a finding that the individual intended to, or did, commit an indictable offence amidst their entry into a “place”.

The punishment for committing a breaking and entering offence can vary quite drastically. There is no minimum penalty for break and enter offences in Canada. However, a prospective sentence could carry with it a penalty of life imprisonment, as per section 348(1)(d) of the Criminal Code. Sentence length and the whether the Crown proceeds summarily or by indictment depends largely on the type of “place” that was broken and entered into.

At Strategic Criminal Defence, our lawyers have supported many clients with breaking and entering charges. We have the experience and knowledge needed to provide you with sound advice on the best way to handle your breaking and entering charge.

Key Takeaways

• The severity of a breaking and entering offence will vary depending on whether you are prosecuted summarily or by indictment, which will depend on what place the police allege you broke and entered into.
• There is potential for incarceration for a breaking and entering charge, varying from a minimal sentence to life imprisonment.
• Depending on the circumstances of the breaking and entering, there may be a presumption against granting bail.
• Bail conditions can include refraining from contacting the alleged victim, restriction from attending the site of the alleged break and enter, a prohibition on drugs, alcohol, travelling, and weapons, and conditions such as curfew or house arrest.
• Breaking and entering charges can be beaten. Contact a lawyer for assistance in determining the best strategy for you.

How can a breaking and entering lawyer in Calgary help?

When fighting a breaking and entering charge, there are numerous advantages to hiring a criminal defence lawyer. A lawyer will provide you with legal advice before they charge you, which will allow you to determine if you would like to continue with their services. A lawyer can also protect you against self-incrimination by allowing you to navigate your conversations with law enforcement.

A lawyer’s purpose is to be dedicated to helping you beat the charge. A lawyer will gather evidence, interview witnesses, and retain expert witnesses if necessary to help you reach the best possible outcome. Lawyers also come with a wealth of experience navigating the criminal justice system and court process and can represent you during trial.

Breaking and Entering Charge in the Criminal Code of Canada

According to section 348(1)-(3) of the Criminal Code

Examples of Breaking and Entering Charges

Some examples of a breaking and entering charge may include the following:

• Entering someone’s home without their permission and stealing items from the premises.
• Entering into someone’s home without their permission with the intent to steal items, regardless of whether or not items were actually taken off of the premises.
• Going into a place of business without permission and destroying property.
• Going into someone’s home to confront a person using violence such as assault or the threat of violence.
• Remaining in a store after it closes to steal items and then breaking out of the premises upon leaving.

Breaking and Entering Charge Defences

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a breaking and entering charge.

• Rebutting the presumption of an intent to commit an indictable offence: If you can disprove the presumption that there existed an intention to commit an indictable offence, you may have a defence to a breaking and entering charge. This is only available for the intent to commit offence, as there is no presumption to disprove if an indictable offence actually occurred.
• Consent: In certain situations, there may exist the availability of the defence of “consent”. Simply put, this defence may be invoked where the accused was provided consent to be on the premises by the rightful owner of the place.
• Intoxication: In rebutting the presumption that the accused intended on committing an indictable offence amidst a break and enter, the accused may (if factually available to them) apply the defence of intoxication as evidence to the contrary.
• Identity: Depending on the circumstances of your case, a possible defence to a breaking and entering charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who engaged in the breaking and entering.
• Any applicable Charter defences: The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

What are the consequences of a breaking and entering charge?

In instances relating to the break and enter of a dwelling-house, section 348.1 of the Criminal Code requires the court to consider whether the dwelling-house was occupied at the time of the offence.

If the dwelling-house was occupied, this is meant to be an aggravating factor at sentencing and the court may consider sentences higher than the normative range because the degree of invasion is increased. Furthermore, section 348.1 deems violence and threats used to intimidate the person within the dwelling as an aggravating factor at sentencing.

Additionally, it is important to consider the special circumstances surrounding breaking and entering to steal a firearm. This is criminalized under a separate section of the Criminal Code, in sections 98(1)-(4). These sections outline that if the purpose of the break and enter was to steal a firearm, the offence is considered indictable and the punishment can be up to life imprisonment.

Maximum Terms of Imprisonment for Break and Enter Offences in Canada:

• Entered a private dwelling – house – Indictable
  • Life – section 348(1)(d)
• Intended to or did steal a firearm – Indictable
  • Life – section 98(4)
• Entered a place other than a dwelling – house – Indictable
  • 10 years – section 348(1)(e)
• Entered a place other than a dwelling – house – Summary
  • 6 months – section 348(1)(e)

Besides terms of imprisonment the court is also allowed to impose:

• Fines including Victim Fine Surcharge (sections 348(1)(e) and 737)
• Firearms Prohibition (sections 109,110)
• Bans of communication with the complainant(s), witnesses, etc. (sections 732.1(3)(h), 742.3(2)(a.3), 742.3(2)(f), and 743.21)
• Probation (section 731(1))
• Order samples to be provided for and saved in the DNA Databank (section 487.051)
• In cases where the offender committed a designated sexual offence, to be registered as a sex offender (section 490.012(1))
• Restitution (paying the victim for lost, stolen or damaged items) (section 738(1))
• Forfeiture of any property intended to be used or actually used in the commission of the break and enter (section 462.37(1))

Breaking and Entering Charge Investigation

An investigation into breaking and entering is usually initiated by the alleged victim or someone else who witnessed the crime. This person typically makes a report to the police, who may arrive to investigate right away. In some circumstances, the accused may be detained by individuals such as security or loss prevention officers, who would phone the police to report the incident.

The police will arrive and often request a statement from the victim and eyewitnesses. Accused persons are often charged quickly, and the police may ask them for a statement at this time. If the accused is not present at the scene when the police arrive, a warrant may be issued for their arrest.

After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.

Bail Conditions for Breaking and Entering Charges

If you are released on bail after being charged with breaking and entering, you will be provided certain conditions which you must follow after being released to the public. If you do not follow these conditions, you can be arrested and held in custody pending another bail hearing. Your bail conditions will provide certain restrictions which you must follow.

Conditions could involve a no-contact condition with the alleged victim(s) and a no-go condition to the place of the alleged break and enter. Depending on your condition when committing an offence, conditions may limit drug and alcohol use or the possession of firearms and other weapons. More severe conditions can include house arrest or curfew conditions.

Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.

Frequently Asked Questions About Breaking and Entering

Will a breaking and entering charge show on my criminal record while the case is ongoing?

While a breaking and entering charge will not show up on a criminal record while a case is ongoing, police databases will show that you have been charged with an offence. A vulnerable sectors check can possibly see ongoing charges that you have not been convicted of.

Will a breaking and entering charge show on my criminal record after the case is done?

Whether a breaking and entering charge shows up on your criminal record will depend on the resolution of your case. If you are found not guilty or have your charge resolved in a manner that does not involve a conviction, your matter will not show up on a criminal record. Alternatively, if you do plead guilty, it will show up on your record. If you plead not guilty, the police may have a record that you were charged with an offence.

How long does a breaking and entering case take?

The length of a breaking and entering case is determined by the charges you face, the seriousness of the offence, and the complexity of the legal issues to be explored. The length of the case can also be affected by the court and prosecution resources in your particular jurisdiction. In a busy jurisdiction with limited court resources, longer wait times in obtaining a trial date are to be anticipated.

If you are proceeding to trial, the Supreme Court of Canada has indicated that most summary conviction matters should be completed within 18 months unless there are exceptional factors which have contributed to unusual delays. In the case of more complicated breaking and entering cases with multiple accused, it could take over 2 years for a trial to occur.

Can I travel while a breaking and entering case is ongoing?

You can likely travel while a breaking and entering case is ongoing. Though you are required to appear in court on certain days, your lawyer can do this on your behalf. Unless bail conditions limit your ability to travel, you should be able to do so freely. However, it is important to note that countries such as the USA will be able to see that a breaking and entering case is ongoing and may not allow you entry into that country.

If you have criminal charges and are considering travelling to the US, it is recommended that you seek legal advice to assist you in evaluating your entry prospects prior to travelling. Our office now offers a “waivers” service to gain entry into the US, even with a criminal charge or criminal record. For more information on this service please visit the Pardons page.

Can I go to jail for breaking and entering?

If you are found guilty of breaking and entering, you can go to jail. If you are convicted for an offence under sections 348(1)-(3) of the Criminal Code, your sentence can vary quite drastically. There is no minimum penalty for breaking and entering offences in Canada, but conviction can result in sentences as high as life imprisonment in some instances. As a result, you can go to jail if you are convicted of breaking and entering.

Related Offences

• Arson: Arson is an offence involving the dangerous use of fire or explosives. Someone may commit arson while breaking and entering.
• Fraud: Fraud involves a wide array of acts where another person is defrauding. Fraud may be related to breaking and entering if someone steals a credit card from the place and then uses it.
• Mischief: Mischief is an unlawful interference with the property of another person. One may interfere with property when stealing it.
• Possession of Stolen Property: A person who steals property during breaking and entering may fall under possession of stolen property offence as well.
• Robbery: Robbery is an extreme version of theft which involves violence or the threat of violence. Robbery can occur in the process of breaking and entering.